Many of you, like me, have been watching the publishers' (plaintiffs) lawsuit against Georgia State University (GSU) concerning the amount of copyrighted material posted in the University's electronic reserves and online course management systems, pursuant to fair use. The burning question for me is how much was too much for the publishers?
Before the lawsuit was filed, materials on GSU's e-reserves could be viewed by anyone, enabling the publisher plaintiffs to acquire a great deal of data. Fifteen of their works were selected for inclusion in their complaint as illustrative of uses far in excess of fair use and, thus, requiring permission. The complaint names the work and the amount (pages or chapters) posted in e-reserves. [No specific examples were given for works used in online courses since those courses were access-protected].
What we all want to know, however, and what I was unable to locate in any coverage of this lawsuit, is how much of a work is so far beyond fair that it would trigger a lawsuit? In meaningful terms, like a percentage. Number of pages used is less than useful without knowing the total number of pages in the work. Oddly enough, the complaint does not supply that information at all. From the complaint, there is no way of evaluating what publishers consider fair or how far apart publishers and universities might be on this issue.
Ok. You can figure it out yourself, just takes more time. Using the amounts stated in the complaint versus the total amount of pages in the work, I obtained percentages for all but one older work.
[Note: Since I was working through Amazon, occasionally I only knew the number of pages up to the last chapter. This means that any errors favor the publishers, since I was using a total that was actually less than the true total.]
Are you sitting down? Here are the percentages used by GSU E-Reserves that resulted in a lawsuit; they are in ascending order rather than tracking the complaint.
4.6%, 9%, 9.9%, 11.5%, 12%, 12.4%, 12.5%, 13%, 13%, 15.7%, 18%, 22%, 26%, and 26.4%.
The average is 14.7%
The median is 12.75%
The mode is either 12 or 13%, depending on rounding.
I confess to finding these numbers remarkable. They speak for themselves. However, I might suggest that one reasonable view of these figures would be that, according to these publisher plaintiffs, there IS no fair use for e-reserves (or, by extrapolation, online courses). Meaning every use requires permission.
Does that bother you?